IN THE CASE OF:	  

		BOARD DATE:	  5 July 2011

		DOCKET NUMBER:  AR20100029535 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of his earlier request for:

* correction of his military records to reflect time served as a helicopter door gunner
* compensation based on flight time as a helicopter door gunner

2.  In addition, the applicant requests award of the Purple Heart (PH) for disease sustained in association with Agent Orange.

3.  The applicant states he flew many combat missions as a helicopter door gunner and was unjustly denied flight status and pay.  Additionally, the applicant states he is a victim of Agent Orange exposure and believes he is entitled to award of the PH.

4.  The applicant provides:

* a self-authored statement
* two letters of commendation
* an email from his former commander
* a photograph
* a certificate and five affidavits affirming helicopter door gunner assignment



CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050004657 on 17 November 2005.

2.  The applicant submitted documentation which was not previously reviewed by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  Records show the applicant was inducted into the Army of the United States on 1 September 1965.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 45J (Aircraft Armament).  The highest rank he attained while serving on active duty was specialist four/E-4.

4.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) during the period 30 October 1966 through 24 August 1967.  Records show he was assigned to Battery B, 2nd Battalion, 20th Artillery, 1st Cavalry Division, and performed duties in MOS 46J as an aircraft armament repairer.

5.  The applicant's record does not contain flight records or other documentation which show he performed flight duties as a helicopter door gunner which would have authorized him flight pay.

6.  The applicant's official military personnel file is void of any orders or documents that indicate he was awarded the PH by proper authority while serving on active duty.  It also contains no medical records showing he was wounded in action or treated for a wound received as a result of enemy action.

7.  During the processing of this case, a member of the Board's staff reviewed the Department of the Army Vietnam casualty roster.  The applicant's name is not included on the roster.

8.  On 24 August 1967, the applicant was honorably released from active duty upon completing 1 year, 11 months, and 24 days of active military service.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he earned the following awards:

* National Defense Service Medal
* Vietnam Service Medal
* Vietnam Campaign Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* one overseas service bar

9.  The applicant provided five affidavits in support of his application.  Four of the affidavits state the applicant served as a helicopter door gunner and flew various combat missions while accruing 124 flying hours.  One affidavit states the applicant served as a helicopter door gunner.

10.  A certificate provided by the applicant's former commander states the applicant served in a dual role as a weapons repairman and aerial gunner accumulating numerous flight hours and engaging the enemy.

11.  Army Regulation 600-8-22, paragraph 2-8, contains guidance on the PH.  It states the PH is awarded to members wounded in action and states that in order to award the PH, there must be evidence the wound for which the award is being made was received as a result of enemy action, the wound required treatment by military medical personnel, and a record of the medical treatment was made a matter of official record.

12.  An Office of the Deputy Chief of Staff for Personnel memorandum, dated 23 June 1989, provided guidance on Agent Orange relative to award of the PH.  It states the criteria for award of the PH is established in several Presidential Executive Orders.  Award of the PH is based upon wounds resulting from hostile actions.  Since Agent Orange was employed by U.S. Forces in the RVN as a chemical defoliant and not by the enemy, its use cannot be construed as a hostile action on the part of the enemy.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for reconsideration of his previous application for flight time compensation and correction of his record to reflect time served as a helicopter door gunner.  The evidence also does not support the applicant's contention that he should be awarded the PH for exposure to Agent Orange.

2.  The evidence provided by the applicant was carefully considered, but is insufficient to support the applicant's contention that he was assigned to a flight position authorized flight pay or that he performed the requisite hours and types of missions required to authorize and/or determine compensation for flight time.

3.  The applicant's contention that he is a victim of Agent Orange exposure and should be awarded the PH was carefully considered and was also found to be without merit.  Based on the 23 June 1989 memorandum from the Office of the Deputy Chief of Staff for Personnel, Agent Orange was only employed by U.S. Forces in Vietnam and not by the enemy.  Therefore, its use cannot be construed as a hostile action on the part of the enemy and exposure to Agent Orange cannot be considered as a basis for award of the PH.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  _____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  In regard to the request for reconsideration, the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20050004657, dated 17 November 2005.

2.  In regard to the new issue, the evidence does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ____________X_____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100029535



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ABCMR Record of Proceedings (cont)                                         AR20100029535



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